12 Johns. 349 | N.Y. Sup. Ct. | 1815
The declaration is clearly bad. The cause of action, stated in the last count, arose after the death of the testatrix, and could not be joined with a cause of action arising in her lifetime. It would require different judgments. The defendants would be personally liable On the cause of action as stated in that count; for the promise is not alleged to have been made by them as executors. They were only named as executors, as a mere des crip tio persona, (Bridgen v. Parkes, 2 Bos. & Pull. 424. Jennings v. Newman, 4 Term Rep. 347. Carter v. Phelps's administrator, 8 Johns. Rep. 440.) That the funeral expenses of the defendants’ testatrix would be payable out of her estate, is no answer to the form of the declaration. It was a cause of action arising after her death, and for which she could have made no promise. There must be judgment for the defendants, with leave to amend, on payment of costs.
